Post by rosa on Dec 19, 2009 4:47:15 GMT -7
I thought this was interesting, tho applying it to just one extreme was a little unfair, as both sides embrace literalism when the perceived need seems to be greatest...this is off of Kos
The Trouble With Original Intent
by thefourthbranch
Thu Dec 17, 2009 at 07:46:43 PM PST
Anytime a judge is nominated for a position on a federal circuit court, and especially for the Supreme Court, you will hear Senators during the confirmation hearings ask the nominee how a judge should interpret the Constitution. For many conservatives, there is only one acceptable answer: originalism.
Originalism is typically explained to the public as meaning "what the founders thought." (Note: this isn't the actual definition of originalism, but it is how it is sold). The explanation appears simple and is easy for the layperson to quickly understand (undoubtedly part of the reason it has taken such a hold in the conservative movement). Unfortunately, that explanation isn't all that accurate.
The first problem with originalism is it paints the founders as being of one mind. That wasn't true of most issues which were actually addressed by the founders, so how likely is it to be true of issues not directly contemplated by the founders? Originalism also struggles to define who the founders were (there are different camps within originalism on this question).
thefourthbranch's diary :: :: Which founders one looks to in deciding what the founders believed may very well radically change the outcome of a particular case. Would the members of the Constitutional Convention as a whole be considered the founders? Or how about members of the Committee on Style (which penned the language in the Constitution)? How about Madison, who was possibly the most influential member of the Convention? Of course, the Convention only proposed the Constitution to the states. Should the state legislatures who ratified the Constitution be considered the founders instead? Committees of those legislatures? Key figures in those legislatures? Does public perception about what a provision meant (if it could be gauged) trump what the drafters themselves thought it meant? Even more problematic is the fact that the Constitution has been amended in significant ways since it was adopted. This is particularly true of the 14th Amendment which, for reasons I won't get into here, radically changed the manner in which the Constitution is interpreted today. Are the drafters of the 14th Amendment the founders? The states who ratified the 14th Amendment, etc., etc.? There aren't any good answers to these questions, other than that the voices that support a particular outcome tend to be the voices called the "founders."
Conversely, are issues which were wholly acceptable to many founders still acceptable today? Take the issue of punishing a criminal by flogging, for example. Flogging was routinely used as a punishment in the early years of the nation's history. Consequently, strict adherence to originalism would likely lead to the conclusion that flogging is a constitutionally permissible form of punishment. It is inconceivable to imagine any court in the United States taking such a position today, however. Even Antonin Scalia, a stalwart originalist, noted, "Even if it could be demonstrated unequivocally that [floggings] were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved [floggings], I doubt whether any federal judge -- even among the many who consider themselves originalists -- would sustain them against an eighth amendment challenge."
To be sure, all forms of constitutional interpretation have their flaws. The judiciary is charged with interpreting and applying a text written in the 18th century to issues never contemplated or in existence in the 18th century. Sometimes that works well, and sometimes it is a struggle. Whereas no serious scholar I am aware of would declare a specific non-originalist form of interpretation to be the single best form of interpretation, originalists frequently claim that originalism is inherently superior to all other forms. Decisions which don't apply originalist theory are decried as shams and "judicial activism," a phrase without any real meaning.
While originalism was once a form of constitutional interpretation, many conservatives have now been convinced that is the only legitimate form of constitutional interpretation. It isn't surprising, then, to see a full assault on the judiciary by many conservative politicians and pundits where they perceive originalism is not being used. Such an assault weakens a vital branch of the nation's government, upsetting the delicate balance of power among our three branches. Note that among the strongest critics of the judiciary are congresspeople, members of the legislative branch who tire of seeing that pesky judiciary overturn the laws the Congress spent so much time crafting.
Yet another problem with originalism is that the "founders" themselves never required that originalism be used as the exclusive form of constitutional interpretation. Rather than require a judge to adopt a certain form of constitutional interpretation, the founders provided for the impeachment of judges who got out of line as well as the advice and consent of the senate to put federal judges on the bench in the first place. Those are the checks of the system.
So how should constitutional interpretation work? It has to start with the text of the Constitution itself. Despite the passage of over 200 years since the Constitution's drafting, the text itself is often unambiguous. Where ambiguity exists, however, judges must work to resolve the ambiguity in a manner which is fundamentally consistent with the constitutional provision in question. Take again the 8th Amendment as an example. We know that cruel and unusual punishment is unconstitutional. So what does "cruel and unusual" mean? Must we apply the understanding of the term in the 18th century (as originalism would require)? Or is "cruel and unusual" a concept that evolves as society evolves (which seems implicit in Scalia's admission that no originalist would permit flogging today)? If the concept evolves, how can it be measured? "Cruel and unusual" are comparative terms. "Cruel" compared to what? "Unusual" compared to what? The basis of comparison will differ from judge to judge, and there is nothing inherently wrong with that. One judge may look to what states view as cruel, and may ask how many states permit a certain punishment (the fewer that permit it, the more "unusual" it appears). Others look beyond the nation's borders to global conventions on human rights (which has upset many conservatives- "why are the judges looking at other countries to interpret OUR Constitution?!). Public opinion on "cruel" could also be reviewed (words mean what most people think they mean). Just as there is no easy way to define cruel and unusual today, so too is there no easy way to define what it meant in 1791. In this instance, originalism would tell us to look at what the term meant in 1791 but wouldn't tell us whose opinion in 1791 would govern.
Originalism isn't necessarily worse than every other form of interpretation, but it isn't necessarily better either, contrary to its supporters' claims (Justices Scalia and Thomas in particular have been quite vocal on this point). I have no problem with those who advocate for originalism as a valid method of constitutional interpretation, so long as they don't then assault every other form of interpretation as illegitimate. The application of originalism to a set of facts is far more difficult than the overly-simplified explanation of "just do what the founders would do." As politicians in the legislative and executive branches continue to look for easy ways to weaken a competing branch of government (the judiciary), one can only hope that the public won't play a willing accomplice by assaulting good judges who (wisely) don't share the politician's belief that originalism is the only valid form of interpretation (rather than merely a form of interpretation).
www.thefourthbranch.com
The Trouble With Original Intent
by thefourthbranch
Thu Dec 17, 2009 at 07:46:43 PM PST
Anytime a judge is nominated for a position on a federal circuit court, and especially for the Supreme Court, you will hear Senators during the confirmation hearings ask the nominee how a judge should interpret the Constitution. For many conservatives, there is only one acceptable answer: originalism.
Originalism is typically explained to the public as meaning "what the founders thought." (Note: this isn't the actual definition of originalism, but it is how it is sold). The explanation appears simple and is easy for the layperson to quickly understand (undoubtedly part of the reason it has taken such a hold in the conservative movement). Unfortunately, that explanation isn't all that accurate.
The first problem with originalism is it paints the founders as being of one mind. That wasn't true of most issues which were actually addressed by the founders, so how likely is it to be true of issues not directly contemplated by the founders? Originalism also struggles to define who the founders were (there are different camps within originalism on this question).
thefourthbranch's diary :: :: Which founders one looks to in deciding what the founders believed may very well radically change the outcome of a particular case. Would the members of the Constitutional Convention as a whole be considered the founders? Or how about members of the Committee on Style (which penned the language in the Constitution)? How about Madison, who was possibly the most influential member of the Convention? Of course, the Convention only proposed the Constitution to the states. Should the state legislatures who ratified the Constitution be considered the founders instead? Committees of those legislatures? Key figures in those legislatures? Does public perception about what a provision meant (if it could be gauged) trump what the drafters themselves thought it meant? Even more problematic is the fact that the Constitution has been amended in significant ways since it was adopted. This is particularly true of the 14th Amendment which, for reasons I won't get into here, radically changed the manner in which the Constitution is interpreted today. Are the drafters of the 14th Amendment the founders? The states who ratified the 14th Amendment, etc., etc.? There aren't any good answers to these questions, other than that the voices that support a particular outcome tend to be the voices called the "founders."
Conversely, are issues which were wholly acceptable to many founders still acceptable today? Take the issue of punishing a criminal by flogging, for example. Flogging was routinely used as a punishment in the early years of the nation's history. Consequently, strict adherence to originalism would likely lead to the conclusion that flogging is a constitutionally permissible form of punishment. It is inconceivable to imagine any court in the United States taking such a position today, however. Even Antonin Scalia, a stalwart originalist, noted, "Even if it could be demonstrated unequivocally that [floggings] were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved [floggings], I doubt whether any federal judge -- even among the many who consider themselves originalists -- would sustain them against an eighth amendment challenge."
To be sure, all forms of constitutional interpretation have their flaws. The judiciary is charged with interpreting and applying a text written in the 18th century to issues never contemplated or in existence in the 18th century. Sometimes that works well, and sometimes it is a struggle. Whereas no serious scholar I am aware of would declare a specific non-originalist form of interpretation to be the single best form of interpretation, originalists frequently claim that originalism is inherently superior to all other forms. Decisions which don't apply originalist theory are decried as shams and "judicial activism," a phrase without any real meaning.
While originalism was once a form of constitutional interpretation, many conservatives have now been convinced that is the only legitimate form of constitutional interpretation. It isn't surprising, then, to see a full assault on the judiciary by many conservative politicians and pundits where they perceive originalism is not being used. Such an assault weakens a vital branch of the nation's government, upsetting the delicate balance of power among our three branches. Note that among the strongest critics of the judiciary are congresspeople, members of the legislative branch who tire of seeing that pesky judiciary overturn the laws the Congress spent so much time crafting.
Yet another problem with originalism is that the "founders" themselves never required that originalism be used as the exclusive form of constitutional interpretation. Rather than require a judge to adopt a certain form of constitutional interpretation, the founders provided for the impeachment of judges who got out of line as well as the advice and consent of the senate to put federal judges on the bench in the first place. Those are the checks of the system.
So how should constitutional interpretation work? It has to start with the text of the Constitution itself. Despite the passage of over 200 years since the Constitution's drafting, the text itself is often unambiguous. Where ambiguity exists, however, judges must work to resolve the ambiguity in a manner which is fundamentally consistent with the constitutional provision in question. Take again the 8th Amendment as an example. We know that cruel and unusual punishment is unconstitutional. So what does "cruel and unusual" mean? Must we apply the understanding of the term in the 18th century (as originalism would require)? Or is "cruel and unusual" a concept that evolves as society evolves (which seems implicit in Scalia's admission that no originalist would permit flogging today)? If the concept evolves, how can it be measured? "Cruel and unusual" are comparative terms. "Cruel" compared to what? "Unusual" compared to what? The basis of comparison will differ from judge to judge, and there is nothing inherently wrong with that. One judge may look to what states view as cruel, and may ask how many states permit a certain punishment (the fewer that permit it, the more "unusual" it appears). Others look beyond the nation's borders to global conventions on human rights (which has upset many conservatives- "why are the judges looking at other countries to interpret OUR Constitution?!). Public opinion on "cruel" could also be reviewed (words mean what most people think they mean). Just as there is no easy way to define cruel and unusual today, so too is there no easy way to define what it meant in 1791. In this instance, originalism would tell us to look at what the term meant in 1791 but wouldn't tell us whose opinion in 1791 would govern.
Originalism isn't necessarily worse than every other form of interpretation, but it isn't necessarily better either, contrary to its supporters' claims (Justices Scalia and Thomas in particular have been quite vocal on this point). I have no problem with those who advocate for originalism as a valid method of constitutional interpretation, so long as they don't then assault every other form of interpretation as illegitimate. The application of originalism to a set of facts is far more difficult than the overly-simplified explanation of "just do what the founders would do." As politicians in the legislative and executive branches continue to look for easy ways to weaken a competing branch of government (the judiciary), one can only hope that the public won't play a willing accomplice by assaulting good judges who (wisely) don't share the politician's belief that originalism is the only valid form of interpretation (rather than merely a form of interpretation).
www.thefourthbranch.com